Smoke-free Environment Regulation 2000 (NSW)

1Name of Regulation

This Regulation is the Smoke-free Environment Regulation 2000.

2Commencement

This Regulation commences on 6 September 2000.

3Definition(1)

In this Regulation:

the Act means the Smoke-free Environment Act 2000.

(2)

Notes included in this Regulation do not form part of this Regulation.

4Signs displayed in smoke-free zones(1)

For the purposes of section 9 (1) of the Act, signs that are clearly legible and contain:

• (a)

  the smoking prohibited symbol with a diameter of at least 90 mm, and

• (b)

  the words “NO SMOKING” in letters of at least 20 mm in height, and

• (c)

  a reference to the name of the Act, and

• (d)

  the words “Penalties may apply”,

are prescribed.

(2)

For the purposes of section 9 (1) of the Act, the prescribed manner of displaying signs within a smoke-free area is:

• (a)

  in such numbers, and

• (b)

  in positions of such prominence,

that they are likely to be seen by a person at a public entrance to, or within, the area.

(3)

In this clause:

smoking prohibited symbol means the symbol designated in Australian Standard 2899.1—1986 to indicate where smoking is prohibited.

5Exemption from requirement to display signs

In accordance with section 9 (2) of the Act, any public place:

• (a)

  in respect of which persons would reasonably be expected to know, by custom or otherwise, that smoking is not permitted, and

• (b)

  in which persons do not usually smoke,

is exempt from section 9 (1) of the Act.

6Exempt areas—prescribed requirements

The occupier of premises that contain an exempt area is required:

• (a)

  to separate the exempt area from any other part of the premises that is a smoke-free area by the use of partitions or other similar barriers, or

• (b)

  to ensure that a space of at least 1.5 metres is maintained between the exempt area and any other part of the premises that is a smoke-free area.

7Authorisation for second room to be part of exempt area(1)

The Minister may grant an authorisation under section 11B (6) of the Act to set aside a second room or part of a second room of a club, hotel, nightclub or casino as part of an exempt area only if an application is made in accordance with subclause (2) and the Minister is satisfied that:

• (a)

  all public places that are part of the premises in respect of which the exemption is being sought are enclosed, and

• (b)

  the existing exempt area is a gaming machine room the area of which is less than 15% of the total area of all the rooms in the club, hotel, nightclub or casino, and

• (c)

  the second room or part of a second room that is proposed to be set aside is as close as possible to the existing exempt area, and

• (d)

  the area of the second room or part of a second room that is proposed to be set aside, when added to the existing exempt area, will be less than 25% of the total area of all the rooms in the club, hotel, nightclub or casino.

(2)

An application for an authorisation to set aside a second room or part of a second room of a club, hotel, nightclub or casino as part of an exempt area:

• (a)

  is to be made by, or on behalf of, the licensee, secretary or casino operator, as the case may be, and

• (b)

  is to be lodged with the Director-General, and

• (c)

  is to be in the form of a written statement setting out the reasons why the exemption should be granted taking into account the requirements of the Act and this Regulation, and

• (d)

  is to be accompanied by a floor plan of the premises in respect of which the exemption is sought showing the location, dimensions and area of:

  • (i)

    the exempt area, and

  • (ii)

    the second room or part of a second room that is proposed to be set aside as part of the exempt area, and

  • (iii)

    each other room of the club, hotel, nightclub or casino, and

• (e)

  is to be accompanied by an application fee of $500.

Note—

Section 307A of the Crimes Act 1900 provides for a maximum penalty of 2 years imprisonment, or a fine of 200 penalty units ($22,000), or both for an offence of making a false or misleading application.

(3)

Words and expressions used in this clause have the same meanings as they have in Part 3 of the Act, including the definition of room in section 11B.

8Guidelines for determining what is an enclosed public place etc(1)

The provisions of this clause prescribe guidelines in relation to determining what is an enclosed public place and when a covered outside area is considered to be substantially enclosed for the purposes of the Act.

(2)

A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces (the total actual enclosed area) of the public place is more than 75 per cent of its total notional ceiling and wall area.

(3)

The total notional ceiling and wall area is the sum of:

• (a)

  what would be the total area of the wall surfaces if:

  • (i)

    the walls were continuous (any existing gap in the walls being filled by a surface of the minimum area required for that purpose), and

  • (ii)

    the walls were of a uniform height equal to the lowest height of the ceiling, and

• (b)

  what would be the floor area of the space within the walls if the walls were continuous as referred to in paragraph (a).

(4)

The following are to be included as part of the total actual enclosed area:

• (a)

  any gap in a wall or ceiling that does not open directly to the outside,

• (b)

  any door, window or moveable structure that is, or is part of, a ceiling or wall, regardless of whether the door, window or structure is open (other than the area of any locked-open door or window),

• (c)

  the area of any locked-open doors or windows, but only that part of the total area of all such doors and windows that exceeds 15 per cent of the total notional ceiling and wall area.

(5)

A gap in a wall or ceiling that opens directly to the outside (other than a gap caused by a door, window or moveable structure being open) is not to be included as part of the total actual enclosed area.

(6)

A gap, door, window or moveable structure required to be included as part of the total actual enclosed area is to be included as if the wall or ceiling were continuous and the gap, or the space occupied by the door, window or moveable structure, were filled by a surface of the minimum area required for that purpose.

(7)

In this clause:

ceiling includes a roof or any structure or device (whether fixed or movable) that prevents or impedes upward airflow.

locked-open door or locked-open window means a door or window that opens directly to the outside and is locked fully open (that is, secured in its fully open position by means of a key operated lock).

moveable structure includes a retractable awning, umbrella or any other moveable structure or device.

wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow.

9Requirement to keep doors and windows locked open(1)

The occupier of an enclosed public place who facilitates smoking in that place (in reliance on clause 8) as a result of doors or windows being locked fully open is guilty of an offence unless the doors or windows concerned are kept locked fully open for the entire hours of operation of the place on each day during which the occupier facilitates smoking there.

Maximum penalty:

• (a)

  5 penalty units, in the case of a natural person, or

• (b)

  25 penalty units, in the case of a body corporate.

(2)

The hours of operation of a place are the hours during which the place is open as a public place.